UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 08-7157

JIMMY RAY WEATHERHOLT, JR.,

Plaintiff Appellant,
v.
OFFICER BRADLEY,
Defendant Appellee,
and
SERGEANT HARVEY,
Defendant.

Appeal from the United States District Court for the Eastern
District of Virginia, at Norfolk. Jerome B. Friedman, District
Judge. (2:08-cv-00054-JBF-JEB)

Submitted:

January 30, 2009

Decided:

March 13, 2009

Before WILKINSON, MOTZ, and DUNCAN, Circuit Judges.

Vacated and remanded by unpublished per curiam opinion. Judge

Wilkinson wrote a dissenting statement.

Jimmy Ray Weatherholt, Jr., Appellant Pro Se.

Richard Carson
Vorhis, Senior Assistant Attorney General, Richmond, Virginia,
for Appellee.

Unpublished opinions are not binding precedent in this circuit.

PER CURIAM:
Jimmy Ray Weatherholt, Jr., a Virginia prisoner at the
Greensville

Correctional

Center,

appeals

the

district

courts

order dismissing his pro se 42 U.S.C. 1983 (2006) complaint

against Sergeant Harvey, and the order granting summary judgment
in favor of Officer Bradley and denying his renewed motion for
appointment of counsel.

Because the district court erred in

both instances, we vacate the orders and remand the case for
further proceedings consistent with this opinion.

I. Dismissal of Claim Against Sergeant Harvey

We review de novo a district courts dismissal under
Federal Rule of Civil Procedure 12(b)(6).

See Secy of State

for Defense v. Trimble Navigation Ltd., 484 F.3d 700, 705 (4th
Cir. 2007).

A plaintiffs statement of his claim need only

give the defendant fair notice of what the . . . claim is and

the grounds upon which it rests.

Erickson v. Pardus, 127 S.

Ct. 2197, 2200 (2007) (citations and internal quotation marks

omitted).

Factual allegations must be enough to raise a right

to relief above the speculative level and have enough facts to

state a claim to relief that is plausible on its face.

Bell

Atl. Corp. v. Twombly, 550 U.S. ___, 127 S. Ct. 1955, 1965, 1974
(2007).
judge

[W]hen ruling on a defendants motion to dismiss, a

must

accept

as

true

all
2

of

the

factual

allegations

contained

in

the

complaint.

(citations omitted).

Erickson,

127

S.

Ct.

at

2200

In particular, a pro se complaint must be

liberally construed and held to less stringent standards than

formal pleadings drafted by lawyers.
The

Eighth

Amendment

Id. (citation omitted).

imposes

duty

on

prison

officials to protect prisoners from violence at the hands of

other prisoners.

Farmer v. Brennan, 511 U.S. 825, 833 (1994)

(citation omitted).

To establish a claim for failure to protect

from violence, an inmate must show: (1) that he is incarcerated

under conditions posing a substantial risk of serious harm, id.
at 834, and (2) that the prison officials had a sufficiently
culpable state of mind.
omitted).

Id. (internal citations and quotations

In prison-conditions cases that state of mind is one

of deliberate indifference to inmate health or safety.

(internal citations omitted).

Id.

To be deliberately indifferent, a

prison official must know[] of and disregard[] an excessive

risk to inmate health or safety.

Id. at 837.

Whether a prison official had the requisite knowledge

of

substantial

demonstration

in

risk
the

is
usual

question
ways,

of

fact

including

subject

inference

to
from

circumstantial evidence, . . . and a factfinder may conclude

that a prison official knew of a substantial risk from the very
fact

that

the

risk

was

obvious.

Id.

at

842.

While

the

obviousness of a risk is not conclusive and a prison official

3

may show that the obvious escaped him, . . . he would not escape
liability

if

the

evidence

showed

that

he

merely

refused

to

verify underlying facts that he strongly suspected to be true,

or

declined

to

confirm

suspected to exist.

inferences

of

risk

Id. at 843 n.8.

that

he

strongly

A prison official also

may not escape liability for deliberate indifference by showing

that, while he was aware of an obvious, substantial risk to
inmate

safety,

he

did

not

know

that

the

complainant

was

especially likely to be assaulted by the specific prisoner who

eventually committed the assault.

Id. at 843.

A plaintiffs

failure to personally notify prison officials of an alleged risk

to his safety is not dispositive as to the issue of whether
prison officials knew of the risk.

Id. at 848-49.

mere

as

negligence

does

not

qualify

deliberate

A showing of
indifference.

See Davidson v. Cannon, 474 U.S. 344, 347 (1986); Grayson v.

Peed, 195 F.3d 692, 695 (4th Cir. 1999).
also

show

mental

he

injury

suffered
as

serious

result

of

or

The plaintiff must

significant

the

physical

defendants

or

conduct.

Strickler v. Waters, 989 F.2d 1375, 1380-81 (4th Cir. 1993).

Weatherholt claims that he suffered serious injuries
at the hands of other inmates because Harvey directed that he
identify inmates who allegedly robbed him in person, rather than
through a photo identification process.

Although Weatherholt

does not explicitly allege that Harvey knew of, and disregarded,
4

the risk to his safety, his pro se pleading must be liberally

construed and is sufficient to give notice of a plausible claim
to relief under the Eighth Amendment.
response

to

an

administrative

Weatherholt attached the

grievance

that

he

filed

with

prison officials concerning this incident, which indicates that

Harvey did not follow proper procedure and that appropriate
action was taken against her as a result.

The resolution of

Weatherholts grievance in his favor is not conclusive evidence

that

Harvey

acted

with

deliberate

indifference,

but

it

constitutes some evidence that Harvey may have disregarded an

obvious,
proper

general

risk

procedure

identifications

in

in

to

inmate

ordering

person.

The

safety

by

failing

Weatherholt
attachment

to
of

to

follow

make

the

his

grievance

resolution to the complaint also constitutes further notice of a

plausible claim that Harvey was deliberately indifferent to a
serious risk to Weatherholts safety.

Accordingly, we vacate

the order dismissing Weatherholts claim against Harvey.

II. Summary Judgment in Favor of Officer Bradley

We review a district courts order granting summary
judgment de novo, viewing the facts and drawing all reasonable
inferences in the light most favorable to the non-moving party.
Doe v. Kidd, 501 F.3d 348, 354 (4th Cir. 2007), cert. denied,
128 S. Ct. 1483 (2008).

Summary judgment should be rendered if

5

the pleadings, the discovery and disclosure materials on file,

and any affidavits show that there is no genuine issue as to any
material fact and that the movant is entitled to judgment as a
matter of law.

Fed. R. Civ. P. 56(c).

In order to withstand a

motion for summary judgment, the non-moving party must produce

competent

evidence

sufficient

to

genuine issue of material fact.

reveal

the

existence

of

Fed. R. Civ. P. 56(e)(2); see

Pension Benefit Guar. Corp. v. Beverley, 404 F.3d 243, 246-47

(4th Cir. 2005).
We conclude the district court accorded insufficient
weight

to

the

administrative

finding

that

proper

procedures

called for Weatherholt to be asked to identify inmates involved

in

the

theft

from

him

by

looking

at

photos.

While

it

is

correct, as noted by the court, that failure to follow prison

rules or regulations does not, without more, give rise to a
constitutional violation, Myers v. Klevenhagen, 97 F.3d 91, 94
(5th Cir. 1996), it does not appear that the court adequately
considered

the

rationale

for

the

prison

policy

in

question.

Presumably, the administrative rule violated in this case was

adopted

out

of

recognition

that

in-person

identification

of

inmates involved in an incident inherently creates a risk of

retaliation.

Accordingly, while we do not hold that Bradleys

failure to follow proper procedures conclusively establishes her

deliberate indifference to a substantial risk of serious injury,
6

we believe that resolution of the claim on the present record

was simply premature.
We make this finding recognizing that Bradley, in her
affidavit attached to her motion for summary judgment, explains
that

she

before

was

not

taking

aware

him

to

of

any

risk

identify

the

to

Weatherholts

perpetrators

he

safety
alleged

forcibly entered his cell, held him against his will, and robbed
him of his belongings.
of

any

risk

of

But Bradleys asserted lack of awareness

harm

to

Weatherholt

from

an

in-person

identification of the inmates involved in the incident is not

dispositive.

Given

Weatherholt
factfinder
obvious

described,
to

risk

reasonable

the
the

rationally
of

violent
present

conclude

significant

prison

nature

official

harm
would

record
that

to

of

the

could

Bradley

Weatherholt

have

been

incident
permit

ignored
of

which

aware.

a
an
a

Summary

judgment in favor of Bradley, at least at this stage of the

proceedings, was accordingly inappropriate.
For the reasons stated, we vacate the district courts
judgment

and

remand

for

further

proceedings.

While

Weatherholts motion for appointment of counsel on appeal is

denied,
remand

we
to

dispense

leave
the

with

the

question

of

sound

discretion

oral

argument

of

appointment
the

because

of

district
the

facts

counsel
court.
and

on
We

legal

contentions are adequately presented in the materials before the

court and argument would not aid the decisional process.
Judge Wilkinson dissents and would affirm the judgment for
the reasons given by the district court.

See Weatherholt v.

Harvey, No. 2:08-cv-54, slip op. at 4-5 (E.D. Va. April 11,
2008); Weatherholt v. Bradley, No. 2:08-cv-54, slip op. at 8-9
(E.D. Va. June 20, 2008).

VACATED AND REMANDED